Ganado Nursing and Rehabilitation Center, Inc. and TAG MGT Services, LLC v. Amalia Poulton, Individually and as Representative of the Estate of Frances Garcia, and Jesse Gomez ( 2020 )

NUMBER 13-20-00097-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GANADO NURSING AND
REHABILITATION CENTER, INC.
AND TAG MGT SERVICES, LLC, Appellants,
v.
AMALIA POULTON, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE
ESTATE OF FRANCES GARCIA,
AND JESSE GOMEZ, Appellees.
On appeal from the 135th District Court
of Jackson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justice Longoria and Perkes
Memorandum Opinion by Justice Perkes
This is an interlocutory appeal of the trial court’s order denying the motion of
appellants, Ganado Nursing and Rehabilitation Center, Inc. and Tag Mgt Services, LLC,
to dismiss the health care liability claims of appellees, Amalia Poulton, individually and as
representative of the estate of Frances Garcia, and Jesse Gomez. See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 51.014(a)(9), 74.351(a), (b). By what we construe as two issues,
appellants argue that (1) the trial court abused its discretion in overruling appellants’
objections to appellees’ Chapter 74 report and supplemental report and denying
appellants’ motions to dismiss, and (2) the trial court abused its discretion by allowing
appellees the opportunity to cure deficiencies in the original expert report. We affirm.
I. BACKGROUND
In the early morning hours of November 13, 2016, 73-year-old Garcia fell while at
the Ganado Rehabilitation facility. Facility notes indicate that at 4:30 a.m., a nurse
checked Garcia’s blood pressure and administered medication for hypertension. At
approximately 5:08 a.m., a nurse found Garcia “kneeling on [the] floor beside [the] bed.”
The nurse noted a “large knot from [Garcia’s] eye to [the] top of [her] r[igh]t forehead” and,
after first assisting Garcia up to a lying position, left Garcia’s room to retrieve ice. Garcia
reportedly told the nurse that she fell while “leaning on [the] bedside table.” 1 At 6:29 a.m.,
a nurse recorded the following notation:
CALLED FOR CRASH CART AND TO CALL EMS. STAFF TO ROOM TO
ASSIST. RESIDENT NON[-]RESPONSIVE. SHE DID SLIGHTLY
RESPOND WHEN SHERRI RUBBED HER CHEST. BLOOD SUGAR
TAKEN 292, O2 SAT 96%. EMS IN BUILDING. REPORT GIVEN.
SCARRASC [sic] OUT TO CALL DAUGHTER. EMS STATED PUPILS NOT
RESPONDING. ASSIST ONTO STRETCHER WITH X 3 [sic]. RESIDENT
OUT OF BUILDING. I CALLED ROBERT TO INFORM OF TRANSFER.
1
This was Garcia’s third fall since arriving at the nursing home on October 12, 2016. The first two
falls occurred on October 20 and October 28; Garcia did not receive medical evaluation following either fall.
2
NATHAN FROM [CITIZENS MEDICAL CENTER] ER CALLED. REPORT
GIVEN. INFORMED THAT EMS LEFT APPROX. 6AM.
Garcia was evaluated, intubated, and put on a ventilator at Citizens Medical Center
in Victoria before being transferred to San Antonio Medical Center for a neurosurgical
evaluation. Garcia died two days later on November 15, 2016.
On November 8, 2018, appellees filed suit alleging that, by failing to properly
provide “a safe environment for [Garcia] while [she was] in their care,” “[b]y failing to
properly provide timely medical treatment following the fall,” and “[b]y failing to properly
diagnose and recognize the serious nature of the injury sustained,” appellants “were
negligent and such negligence was the proximate cause of [Garcia’s] injuries and
untimely death.”
On March 21, 2019, appellees filed their Chapter 74 expert report of Truman J.
Milling Jr., M.D. See id. § 74.351. In preparing for his report, Dr. Milling noted that he
reviewed Garcia’s medical records from the hospital but stated that he “did not receive
any documentation from the nursing home or from the continuing care at the San Antonio
hospital.” On April 8, 2019, appellants objected to Dr. Milling’s qualifications and to his
report on the grounds that Dr. Milling’s opinions regarding standard of care, breach, and
causation were conclusory and speculative.
On May 3, 2019, appellees filed an “addendum to [Dr. Milling’s] report on the care
of Frances Garcia after having been provided with the nursing home records and
[appellants’] Motion to Dismiss.” Dr. Milling opined, in part, that the nursing home records
substantiated his initial findings, and he expounded on his expertise in the claim.
On May 20, 2019, appellees filed a motion to strike appellants’ objections to the
Chapter 74 expert report and response to appellants’ objections and motion to dismiss.
3
Appellants thereafter filed supplemental Chapter 74 objections and a reply to appellees’
response. Appellants argued that while “the gist of the claims against Defendants, both
from the Petition and as set forth in Dr. Milling’s reports, is that Defendants’ staff should
have called 911 ‘immediately’ and arranged for a transfer of the resident to the hospital
earlier,” the reports fail to show “how and why this resident would have had a better
outcome if there had not been a short delay in transfer.” Appellants also disputed the
timeline of events provided by Dr. Milling.
On June 21, 2019, the trial court granted appellees a thirty-day extension to cure
deficiencies in their Chapter 74 filing, 2 and appellees filed the supplemental Chapter 74
expert report of Dani Bidros, M.D., on July 18, 2019.
On July 26, 2019, appellants filed objections to Dr. Bidros’s qualifications and
report and a second motion to dismiss. Appellants argued no curriculum vitae (CV) was
served, see id. § 74.351(a), and regardless, Dr. Bidros, a neurosurgeon, was not qualified
to opine on the standard of care or breach of a nursing home. See id. § 74.402(b).
Appellants also objected that Dr. Bidros was not provided and did not review relevant
records from the nursing facility or San Antonio facility and instead, based her opinion on
records from Citizen’s Medical Center and Dr. Milling’s report. Finally, appellants asserted
Dr. Bidros’s report does not contain an opinion on the standard of care required, aver that
appellants breached the standard of care, or establish a causal connection between an
unstated breach of the standard of care and the injuries sustained. Appellees filed Dr.
Bidros’s CV on August 1, 2019.
2
The trial court order did not specify what deficiencies it found in the original expert report.
4
On January 22, 2020, the trial court denied appellants’ objections to appellees’
expert reports and its motions to dismiss. This interlocutory appeal followed. See id.
§ 51.014(a)(9) (providing for interlocutory appeal of the denial of a motion to dismiss a
healthcare liability claim based on a deficient expert report).
II. DISCUSSION
Appellants’ objections to the qualifications of Dr. Milling and Dr. Bidros and to their
opinions regarding all three statutory elements—standard of care, breach, and
causation—are nearly identical. However, their reports differ in detail. We will address
appellants’ objections by expert, beginning with the challenge to the expert’s qualifications
and proceeding to each of the statutory elements.
A. General Authority & Standard of Review
To avoid dismissal under Chapter 74, a health care liability claimant must file an
expert report within 120 days after the defendant answers the suit. Id. § 74.351(a). An
“expert report” is a written report by an expert that provides a fair summary of the expert’s
opinions “regarding applicable standards of care, the manner in which the care rendered
by the physician or health care provider failed to meet the standards, and the causal
relationship between that failure and the injury, harm, or damages claimed.” Id.
§ 74.351(r)(6); see Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013).
Notwithstanding the fact that Chapter 74 speaks only of a “causal relationship” and does
not refer to “proximate cause,” the Texas Supreme Court has held that an expert report
must explain how and why the defendant’s breach proximately caused the plaintiff’s
injury. Columbia Valley Healthcare Sys., L.P. v. Zamarripa, 526 S.W.3d 453, 460 (Tex.
2017) (“[A] plaintiff asserting a health care liability claim based on negligence, who cannot
5
prove that her injury was proximately caused by the defendant’s failure to meet applicable
standards of care, does not have a meritorious claim.”). To satisfy Chapter 74 with respect
to proximate causation, the expert need not use any particular words, such as “proximate
cause,” “foreseeability,” or “cause in fact”; however, the expert’s explanation of the
plaintiff’s injuries must be more than a mere conclusory assertion. Id. The expert must
“explain the basis of his statements to link his conclusions to the facts.” Id.; Jelinek v.
Casas, 328 S.W.3d 526, 539 (Tex. 2010); see also Zamarripa v. Columbia Valley Health
Care Sys., L.P., No. 13-18-00231-CV, 2019 WL 962085, at *3 (Tex. App.—Corpus
Christi–Edinburg Feb. 28, 2019, pet. denied) (mem. op.).
When a report and CV are timely served on a defendant, any objections to the
sufficiency of the report and any objections to the expert’s qualifications must be raised
by the defendant within twenty-one days after service of the report and CV. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(a).
A trial court’s ruling on the sufficiency of an expert’s report is reviewed for an abuse
of discretion. Baty v. Futrell, 543 S.W.3d 689, 693 (Tex. 2018). Under this review, we
defer to the trial court’s factual determinations if they are supported by the evidence but
review its legal determinations de novo. Van Ness v. ETMC First Physicians, 461 S.W.3d
140, 142 (Tex. 2015) (per curiam). A trial court abuses its discretion if it acts without
reference to guiding rules or principles. Id. In exercising its discretion, it is incumbent upon
the trial court to review the reports, sort out their content, resolve any inconsistencies,
and decide whether the reports demonstrate a good faith effort to show that the plaintiff’s
claims have merit. See id. at 144; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(l) (“A court
shall grant a motion challenging the adequacy of an expert report only if it appears to the
6
court, after hearing, that the report does not represent an objective good faith effort to
comply with the definition of an expert report.”). To qualify as an objective good faith effort,
the report must provide enough information regarding the expert’s opinions on the three
statutory elements of standard of care, breach, and causation to fulfill two purposes:
(1) inform the defendant of the specific conduct the plaintiff questions, and (2) provide a
basis for the trial court to conclude that the plaintiff’s claims have merit. See Jelinek, 328
S.W.3d at 538–40 & n.9; Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d
873, 878–79 (Tex. 2001); McAllen Hosps., L.P. v. Gonzalez, 566 S.W.3d 451, 456 (Tex.
App.—Corpus Christi–Edinburg 2018, no pet.). “Whether this [expert’s] explanation is
believable should be litigated at a later stage of the proceedings.” Abshire v. Christus
Health Se. Tex., 563 S.W.3d 219, 226 (Tex. 2018) (per curiam).
B. Qualifications
To opine on the standard of care applicable to a non-physician healthcare provider,
such as appellants, an expert must meet the qualifications of § 74.402. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(r)(5)(B). Subsections 74.402(b) and (c) provide the
following qualifications for an expert:
(b) In a suit involving a health care liability claim against a health care
provider, a person may qualify as an expert witness on the issue of whether
the health care provider departed from accepted standards of care only if
the person:
(1) is practicing health care in a field of practice that involves the
same type of care or treatment as that delivered by the defendant
health care provider, if the defendant health care provider is an
individual, at the time the testimony is given or was practicing that
type of health care at the time the claim arose;
(2) has knowledge of accepted standards of care for health care
providers for the diagnosis, care, or treatment of the illness, injury, or
condition involved in the claim; and
7
(3) is qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standards of health care.
(c) In determining whether a witness is qualified on the basis of training or
experience, the court shall consider whether, at the time the claim arose or
at the time the testimony is given, the witness:
(1) is certified by a licensing agency of one or more states of the
United States or a national professional certifying agency, or has
other substantial training or experience, in the area of health care
relevant to the claim; and
(2) is actively practicing health care in rendering health care services
relevant to the claim.
Id. § 74.402(b), (c) (emphasis added). Appellants are not individuals; thus, § 74.402(b)(1)
does not apply. See id. § 74.402(b)(1); see also Christus Spohn Health Sys. Corp. v.
Alaniz, No. 13-17-00590-CV, 2018 WL 3673013, at *3 (Tex. App.—Corpus Christi–
Edinburg Aug. 2, 2018, no pet.) (mem. op.) (finding the same); Doctors Hosp. v.
Hernandez, No. 01-10-00270-CV, 2010 WL 4121678, at *4–5 (Tex. App.—Houston [1st
Dist.] Oct. 21, 2010, no pet.) (mem. op.) (same).
Dr. Milling is board certified in emergency medicine and completed his emergency
medicine residency at New York Methodist Hospital in 2005, serving as chief resident.
For the past thirteen years, Dr. Milling has worked at “Dell Seton Medical Center at the
University of Texas Austin (formerly Brackenridge Hospital), a level one trauma center,
comprehensive stroke center and the primary teaching hospital for the Dell Medical
School at the University of Texas Austin,” where he also “routinely teach[es] medical
students, residents[,] and fellows to diagnose and treat head injuries.” Dr. Milling has also
“published data on intracranial hemorrhage in all its variations including subdural
hematomas, most recently in the New England Journal of Medicine.”
8
In the trial court, appellants objected to Dr. Miller’s qualifications on the following
grounds:
The report and CV do not show any qualifications under Texas law to
address the standard of care for or breach of the standard of care by a
nursing home or its parent company. Dr. Milling’s report and CV reflect no
education, no training and no experience in nursing home care. Finally, Dr.
Milling’s report and CV reflect no qualifications to opine on the causal
connection between a nursing home’s alleged negligence and the brain
injury and/or death [sic] this case.
....
Further, there is no overlap between the disciplines; there is nothing in
either his report or his CV to show that Dr. Milling has ever
• provided nursing or other care to a resident in a nursing
home such as Ganado Nursing and Rehabilitation;
• provided “proper care and protection” to a nursing home
resident;
• worked in a nursing home to “guard against the
foreseeable consequences of the patient’s injury,
condition, or treatment[;]”
• had to “exercise the degree of care, skill, supervision, and
diligence ordinarily possessed and used by other
providers under the same or similar circumstances” in a
nursing home facility[;]
• provided “skilled care and treatment” in a facility to a
resident such as Decedent[;]
• determined whether or when a nursing home resident
needs “timely … [sic] medically treatment or transportation
to an appropriate facility or medical treatment or
transportation to an appropriate facility for treatment[;]”
• “properly monitor[ed]” a resident of a nursing home facility
while in his care “so as to not cause her to fall to the
ground, and to subsequently provide proper and timely
medical care.”
9
Appellants additionally argue Dr. Milling inappropriately “opines about delays in
neurosurgical evaluation and possible surgical evacuation of the subdural hematoma, as
well as herniation syndrome, and gives the opinion that earlier intervention would have
improved the outcome,” despite demonstrating “no experience or expertise in
neurosurgery generally or evaluation and surgical evacuation of subdural hematomas or
treatment (if any) of herniation syndrome specifically.”
Contrary to appellants’ assertions, subsection 74.402(b)(1) does not require that
Dr. Milling be “practicing health care in a field of practice that involves the same type of
care or treatment as that delivered by” appellants—i.e., a nursing home—because
appellants are not individuals. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(1); see
also Alaniz, 2018 WL 3673013, at *3; Hernandez, 2010 WL 4121678, at *4–5. Thus, the
proper inquiry is not whether Dr. Milling has worked in or provided care at a nursing home.
Rather, the relevant question is whether he possesses the knowledge, skill, experience,
training, or education regarding the fundamental principles of the claim raised. See
Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 233–34 (Tex. App.—
Amarillo 2003, no pet.); see also IHS Acquisition No. 140, Inc. v. Travis, No. 13-07-00481-
CV, 2008 WL 1822780, at *5 (Tex. App.—Corpus Christi–Edinburg Apr. 24, 2008, pet.
denied) (mem. op.) (concluding that an expert certified in geriatrics and “knowledgeable
about the types of people who reside in nursing homes, their afflictions, and most
importantly, the relevant treatment and standard of care for such patients,” was qualified
to testify to the standard of care applicable in a claim against a nursing home for failure
to monitor a resident’s eye injury despite never having worked in a nursing home).
10
The “illness, injury, or condition” at the crux of the claim here is a fall resulting in a
head injury, and the lawsuit concerns whether appellees failed to properly provide timely
medical treatment following the fall and failed to properly diagnose and recognize the
serious nature of the injury. 3
Dr. Milling’s expert report read in relevant part:
My opinions are based on my training, qualifications and active practice in
the specialty of emergency medicine for the past 13 years, now and at the
time of the events in question. . . . Briefly, my qualifications are as follows. I
am a certified emergency physician by the American Board of Medical
Specialties/American Board of Emergency Medicine. . . . My primary
practice site for the past 13 years has been Dell Seton Medical Center at
the University of Texas Austin (formerly Brackenridge Hospital), a level one
trauma center, comprehensive stroke center and the primary teaching
hospital for the Dell Medical School at the University of Texas Austin, and I
serve on the Seton Network Stroke Operations Council. I routinely teach
medical students, residents and fellows to diagnose and treat head injuries.
....
There is significant overlap between emergency department care and
nursing home care, particularly in regards to head injury and who should be
further evaluated. And fall prevention, falls and the triage decision of who
needs further evaluation are a part of any medical specialty that cares for
patients in beds, i.e. nearly all of them. And they all refer those fall patients
to the emergency department and emergency physicians for further
evaluation.
There was also some concern regarding my expertise in neurosurgical
intervention. I have published data on intracranial hemorrhage in all its
variations including subdural hematomas, most recently in the New England
3
We observe that neither of appellees’ expert reports address whether appellants were negligent
by failing to provide Garcia with “a safe environment,” as alleged in appellees’ live petition. Instead, the
reports concern appellants’ response to Garcia’s alleged fall—i.e., appellants alleged failure to “properly
provide timely medical treatment following the fall” and “diagnose and recognize the serious nature of the
injury sustained.” See McAllen Hosps., L.P. v. Gonzalez, 566 S.W.3d 451, 457–58 (Tex. App.—Corpus
Christi–Edinburg 2018, no pet.) (noting that “an expert report that adequately addresses at least one
pleaded liability theory against a defendant is enough to defeat that defendant’s motion to dismiss under
the expert report rule”); SCC Partners, Inc. v. Ince, 496 S.W.3d 111, 114–15 (Tex. App.—Fort Worth 2016,
pet dism’d) (providing that “if at least one alleged claim, theory, or cause of action in a healthcare liability
suit has expert support, then the legislative intent of deterring frivolous suits has been satisfied”); see also
Matagorda Nursing & Rehab. Ctr., L.L.C. v. Brooks, No. 13-16-00266-CV, 2017 WL 127867, at *6 (Tex.
App.—Corpus Christi–Edinburg Jan. 12, 2017, no pet.) (mem. op.).
11
Journal of Medicine. While I do not perform craniotomies myself, I am well
versed in the indications and outcomes. Care of the brain injured patient is
multi-disciplinary, including emergency physicians, neurosurgeons,
neurologists and critical care specialists.
Dr. Milling’s report demonstrates experience in rendering health care services
relevant to the claim—the diagnosis and treatment of head injuries. See Christian Care
Centers, Inc. v. Golenko, 328 S.W.3d 637, 644 (Tex. App.—Dallas 2010, pet. denied)
(“The essential claim in this case involves the standard of care applicable to the
assessment and care of individuals with Alzheimer’s disease. Thus, the relevant question
is not the narrow issue of whether Dr. Rushing has worked in a nursing home.”); Freeman,
134 S.W.3d at 233–34 (holding that a physician who practiced occupational medicine was
qualified to opine on nursing home care, not because he was knowledgeable about
nursing home care per se, but because he was knowledgeable about the type of injury
that the nursing home patient had suffered—a urinary tract infection—and how it would
affect the patient); see also IHS Acquisition, 2008 WL 1822780, at *5; Nexion Health at
Beechnut, Inc. v. Moreno, No. 01-15-00793-CV, 2016 WL 1377899, at *5 (Tex. App.—
Houston [1st Dist.] Mar. 29, 2016, no pet.) (mem. op.). The trial court did not abuse its
discretion in implicitly determining that Dr. Milling “has knowledge of accepted standards
of care for health care providers for the diagnosis, care, or treatment of the illness, injury,
or condition involved in the claim.” See TEX. CIV. PRAC. & REM. CODE ANN. § 74.402(b)(2).
The next applicable statutory requirement is that Dr. Milling be “qualified on the
basis of training or experience to offer an expert opinion regarding those accepted
standards of health care.” See id. § 74.402(b)(3). In assessing a physician’s “training or
experience” a court must look to whether the expert is certified by a licensing agency and
is actively practicing health care in rendering health care services relevant to the claim.
12
Id. § 74.402(b)(3), (c). Dr. Milling’s report and CV demonstrate he is certified by an
appropriate licensing agency and has had substantial training and experience in the
relevant health care area. See id.; see also IHS Acquisition, 2008 WL 1822780, at *5. The
trial court did not abuse its discretion in implicitly determining that Dr. Milling satisfied this
statutory requirement.
C. Expert Report Elements
Appellants also contend that the trial court abused its discretion in denying their
motion to dismiss on the ground that the reports of Drs. Milling and Bidros convey only
impermissibly conclusory and speculative opinions regarding the (1) standard of care, (2)
breach, and (3) causation.
Dr. Milling opined in part:
According to the emergency physician’s note, Ms. Garcia fell at 4:30 a.m.,
Nov. 13, 2016, hitting her head on a hard surface and losing consciousness
from the impact, but she was "initially fine" though she complained of a
headache, and staff found her obtunded at 6 a.m. The radiologist’s report
puts the fall at 4 a.m. and notes family found her at 6 a.m. unconscious with
dilated pupils.
The patient had a fairly extensive medical history, most notably end stage
renal disease requiring hemodialysis, which would have caused uremic
platelet dysfunction and increased her risk of bleeding even from minor
trauma. This was acknowledged in the medical record by treatment with
Desmopressin (also called DDAVP), which enhances platelet adhesion and
decreases bleeding time in uremia. It is unclear what happened during the
either a 1.5- or 2-hour gap between the injury and the discovery of her
neurologic deterioration at the nursing home. The statement, second hand
though it is, that she was "initially fine" would seem to indicate someone at
the nursing home was aware of the fall. Someone at the nursing home
called 911 after the 6 a.m. discovery, but by the time Ms. Garcia arrived in
the emergency department[,] her neurologic status was worsening, her
Glasgow Coma Scale (GCS) was 6, and she was intubated and put on a
ventilator. She had a moderate sized hematoma to her right temporal scalp,
per the emergency physician’s and nurses’ notes. A CT scan of her head
showed a large (25 mm) right subdural hematoma (SDH) pushing the brain
to the left (midline shift of 14 mm). At this point the patient had multiple
13
indications for emergent neurosurgical intervention, e.g. greater than or
equal to 10 mm width and 5 mm midline shift is a generally accepted
indication among others.
The emergency physician arranged to transfer the patient to San Antonio
for neurosurgical evaluation presumably because he did not have a
neurosurgeon on call at his facility. Given the appearance of the bleeding
on her CT scan, the size of the subdural hematoma and the amount it had
shifted the brain inside the skull, along with her vital signs of hypertension
and bradycardia, the so-called “Cushing’s Response” and her comatose
state, it is likely she was already suffering a fatal brain herniation syndrome
before leaving for San Antonio for neurosurgical evaluation. I was provided
with Ms. Garcia’s death certificate dated Nov. 15, 2016, indicating she died
from complications of injuries sustained in a fall.
...
Older head injury patients are more likely to be admitted to the hospital and
more likely to die. This increased morbidity and mortality is due both to the
fragility of age and also the development of co-morbid conditions that either
intrinsically increase the risk of bleeding, e.g. renal failure and cerebral
atrophy, or require the use of medications that increase that risk, e.g.
antiplatelet and anticoagulant medications. Given this well understood
increased risk, it is routine to see elderly nursing home patients sent to the
emergency department for evaluation of even minor head trauma. Given
this standard, it is difficult to understand and explain the 1.5 to 2[-]hour gap
from the point of Ms. Garcia’s fall to the discovery of her worsened
neurologic status. From the medical records it appeared she had a
significant head trauma with a loss of consciousness. The standard for this
alone would be to send her to the emergency department for evaluation
immediately. She also had platelet dysfunction for her renal failure, which
made her high risk for intracranial hemorrhage. Without a compelling
explanation for the delay, this would be a breach in the standard of care that
caused harm for two primary reasons, i.e. delay in neurosurgical evaluation
and possible evacuation of the subdural hematoma and delay in treatment
of her platelet dysfunction which might have lessened hematoma expansion
and possibly prevented the herniation syndrome that led to her death. The
statement that she was “initially fine” indicates there was a window for these
two interventions that had unfortunately closed by the time she was
discovered unconscious. It is more likely than not that these interventions if
applied earlier in her course would have improved her outcome.
Dr. Milling’s “addendum” provided the following:
I emphasize the times because the gap of about an hour and a half
represents the breach. Tucking a frail elderly woman, with half her face
14
swollen with hematoma, back into bed with an ice pack is a breach of the
medical standard of care and is inferior to what she would likely have
received from a bystander on a street corner. This cannot be emphasized
enough. It was the failure to recognize the seriousness of this initial injury
that was the mistake that in all reasonable medical probability led to Ms.
Garcia’s death. The injuries along with her comorbidities were more than
enough to warrant immediate further evaluation. With regards to clarifying
the term “immediate,” I mean the time it takes to pick up a phone and dial
911, and I certainly do not mean an hour and half or more. Waiting until the
patient deteriorated neurologically made her eventual death inevitable. To
suggest that transfer was not indicated until that time is to profoundly
misunderstand the mechanism of this disease, a collection of blood around
the brain growing and pushing on it until critical structures are irreversibly
damaged causing coma and death. It is important not to confuse an
immediate and transient loss of consciousness at the time of brain injury
(which was described in the emergency department record but not in the
nursing home record) with the comatose state she was found in an hour
and a half later. Failure to immediately transfer after the first event is the
breach in the standard of care that caused harm.
Dr. Milling’s standard of care opinions are conclusory, according to objections appellants
lodged in the trial court, because
Dr. Milling provides no specifics about what the standard of care requires
for an “immediate transfer” and leaves the Court and Defendants to
speculate why transferring the resident after she lost consciousness was
somehow not immediate. He does not opine that the patient should have
been transferred before she lost consciousness and acknowledges that she
was transferred when she did lose consciousness.
Appellants contend that “[s]aying that failure to immediately transfer caused harm is not
enough.”
However, Dr. Milling unequivocally opines that the standard of care required that
the nursing home send Garcia for emergency evaluation “immediately” after her fall—“the
time it takes to pick up a phone and dial 911, and I certainly do not mean an hour and half
or more.” We have previously held that an expert’s proffered opinion on a failure to abide
by an articulated time frame was a sufficient expression of the standard of care. See
Alaniz, 2018 WL 3673013, at *7. Appellants’ breach, according to Dr. Milling, was their
15
failure to send Garcia for emergency evaluation immediately after the fall. And as a
consequence, Dr. Milling opined that ”[w]aiting until the patient deteriorated neurologically
made her eventual death inevitable.” In other words, Dr. Milling’s report explained how
and why he thought appellants breached the standard of care, explained the basis of his
statements and linked his conclusions to specific facts that occurred, and explained why
the appellants’ actions led to the harm and ultimate death of Garcia. See Abshire, 563
S.W.3d at 226 (holding that with respect to causation, our “role is to determine whether
the expert has explained how the negligent conduct caused the injury”); Miller, 536
S.W.3d at 512 (holding that that there was a “more-than-adequate summary” of causation
where the expert explained how the physician’s breach—failing to identify the illness—
delayed timely removal, which in turn caused the patient to aspirate); see also Norberg v.
Ameel, No. 13-18-00165-CV, 2019 WL 6906559, at *5 (Tex. App.—Corpus Christi–
Edinburg Dec. 19, 2019, pet. denied) (mem. op.). Accordingly, the report advises
appellants of the specific conduct appellees have called into question and provides the
trial court a basis for it to conclude that the claims have merit. See Miller, 536 S.W.3d at
513. “Additional detail is simply not required at this stage of the proceedings.” Baty, 543
S.W.3d at 697.
We conclude that Dr. Milling’s report was sufficient to qualify as a “good-faith” effort
to comply with the causation requirement under § 74.351. See TEX. CIV. PRAC. & REM.
CODE ANN. § 74.351; see also Abshire, 563 S.W.3d at 224; Gonzalez, 566 S.W.3d at
455–57 (“[A]n expert report is a low threshold a person bringing a claim against a health
care provider must cross merely to show that his or her claim is not frivolous.” (citing
Loaisiga v. Cerda, 379 S.W.3d 248, 264 (Tex. 2012))). We, therefore, hold the trial court
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did not abuse its discretion in granting appellees’ motion for a thirty-day extension nor in
denying appellants’ motions to dismiss. We overrule appellants’ first and second issues. 4
III. CONCLUSION
We affirm the ruling of the trial court.
GREGORY T. PERKES
Justice
Delivered and filed the
1st day of October, 2020.
4
Appellants also challenged Dr. Bidros’s expert report by arguing that Dr. Bidros is not qualified
and the report did not comply with § 74.351. Because we determined that Dr. Milling’s expert report
complies with § 74.351, we do not need to address appellants’ complaints regarding Dr. Bidros’s as those
complaints are not dispositive. See TEX. R. APP. P. 47.1; TEX. CIV. PRAC. & REM. CODE ANN. § 74.351
(providing that an expert report “is not admissible in evidence by any party; shall not be used in a deposition,
trial, or other proceeding; and shall not be referred to by any party during the course of the action for any
purpose”); see also see also Norberg v. Ameel, No. 13-18-00165-CV, 2019 WL 6906559, at *6 (Tex. App.—
Corpus Christi–Edinburg Dec. 19, 2019, pet. denied) (mem. op.).
17